Undocumented college students and college residency--governance structures and policies

Several people have sent me information about the recent trustee actions by several public colleges in Michigan to allow the undocumented who can otherwise meet the durational test of 12 months to gain in-state tuition, and asked me how this did not violate Secs. 1621/1623, which require a state to enact state law doing so. The answer lies in the way that many states determine tuition-setting authority, whether by state legislation (statute), state coordinating boards (regulatory), or, in few rare cases, the institutions themselves (regental/trustee actions). The last means—trustee actions—is very rare, even in states that give their institutions considerable constitutional authority (such as the U of California, where even this autonomy is governed by state tuition statutes and occasional state referenda). Michigan happens to be one such state (Hawaii is another) where the institutions can make this policy change. (I believe that 1621 and 1623 still would require a trustee action, taken after 1996, and no grandfathering.) According to news accounts: the University of Michigan-Ann Arbor and Western Michigan University offer in-state tuition rates with proof that the person resides in the state; Wayne State University does not require citizenship documentation; Saginaw Valley State University allows its president to approve waivers and permit migrant workers' children to pay in-state tuition (this is an old statute, copied from Ohio's, on which I worked in the 1970's, which actually allows migrant workers to accumulate their 12 months over three consecutive years, and has no immigration status component). I do not (yet) know how MSU and the other public colleges (EMU, etc.) have reacted.

Other states, such as Rhode Island, leave this authority to the state board responsible for higher education, and recently, they also took action to enact state law in conformity with 1621/1623 to accord such tuition status. And in most states, it is the Legislature that has this authority, so a state statute is required. In a few states, some schools without independent regental authority likely jumped the gun, as in Colorado, where an Attorney General Opinion held that state statutes had to be enacted, even though a single public college extended this status. (CO recently enacted just such a statute, so that matter was resolved.)

These cases are about the undocumented, not about DACA's effect upon residency, tuition status, and other benefits. As I noted recently, this separate issue is being contested in AZ and elsewhere, and a separate suit has been filed in AZ against its largest two-year college system (Maricopa County Community College System), where the campus lawyers and trustees have determined that DACA allows eligible DA students to pay in-state (actually, in-district) tuition. Because DACA has reduced the number of college students who were formerly-undocumented, these statutes may play less of a role, as long as the state allows DACA-recipients to gain in-state tuition.

For those of you who yearn to breathe feely in this stuff, I am attaching an early article I wrote that set out the various states governance structures for administering residency. It is 25 years old and a bit rusty, but my overall structures were adopted by the College Board for its own analysis and practice, and much of the piece is still useful and relevant, even if the immigration pieces have changed: Michael A. Olivas, Administering Intentions: Law, Theory, and Practice of Postsecondary Residency Requirements, 59 Journal of Higher Education (May/June, 1988), 263-290. For the College Board data, see: http://professionals.collegeboard.com/testing/international/state.

Thanks to all who wrote in, and as always, I appreciate receiving any cases, policies, clippings, studies, and the like that deal with this issue.